Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More Information

Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information UNRAVELLING TORT AND CRIME Tort law and criminal law are closely bound together but their relationship rarely receives sustained and rigorous scrutiny. This is the first significant project in England and Wales to address that shortcoming. Building on growing interest amongst both academics and practitioners in the relationship between tort and crime, it draws together leading experts to chart the field and explore key points of interest. It uses a range of perspectives from legal theory, doctrine, legal history and comparative law to address some of the most important and interesting links between tort and crime. Examples include how the illegality defence operates to avoid stultification of the law, the difference between criminal and civil causation, how the Motor Insurers’ Bureau not only insures but acts to enforce laws and alter behaviour, and why civil law only very rarely restores specific property but the criminal law does it daily. matthew dyson is a Fellow in Law at Trinity College, University of Cambridge, where he specialises in the relationship between tort and crime. He teaches tort law, criminal law, Roman law, comparative law and European legal history. He has held visiting positions at the Universities of Girona, Valencia, Sydney and Göttingen and been a visitor at Harvard, as well as a Visiting Research Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information UNRAVELLING TORT AND CRIME Edited by MATTHEW DYSON © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107066113 © Cambridge University Press 2014 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2014 Printed in the United Kingdom by Clays, St Ives plc A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Unravelling tort and crime / edited by Matthew Dyson. pages cm ISBN 978-1-107-06611-3 (Hardback) 1. Torts–England. 2. Criminal law–England. I. Dyson, Matthew, 1982– editor of compilation. KD1949.A2U57 2014 346.4203–dc23 2014007592 ISBN 978-1-107-06611-3 Hardback Additional resources for this publication at www.cambridge.org/9781107066113 Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information CONTENTS List of contributors vii Foreword ix Preface xi Table of cases xii Table of legislation xxvi 1 Disentangling and organising tort and crime 1 matthew dyson 2 Policing tort and crime with the MIB: remedies, penalties and the duty to insure 22 rob merkin and jenny steele 3 Tort law and criminal law in an age of austerity 58 nicholas j. mcbride 4 Wrongs and responsibility for wrongs in crime and tort 82 g. r. sullivan 5 Private rights and public wrongs 111 robert stevens 6 Torts, crimes and vindication: whose wrong is it? 146 r. a. duff 7 Illegality’s role in the law of torts 174 graham virgo 8 Defences in tort and crime 208 james goudkamp v © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information vi contents 9 Causation in tort law and criminal law: unity or divergence? 239 sandy steel 10 Complicity 275 paul s. davies 11 Civil liability for crimes 304 j. r. spencer 12 Consent and assumption of risk in tort and criminal law 330 kenneth w. simons 13 The interaction of crime and delict in Scotland 356 john blackie 14 The properties of the law: restoring personal property through crime and tort 389 matthew dyson and sarah green Index 422 © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information CONTRIBUTORS john blackie is Emeritus Professor of Law at the University of Strathclyde paul s. davies is fellow and tutor at St Catherine’s College and Associate Professor, University of Oxford r. a. duff is Emeritus Professor, Department of Philosophy at the University of Stirling and Russell M. and Elizabeth M. Bennett Chair in Excellence at the University of Minnesota Law School matthew dyson is fellow in law at Trinity College, University of Cambridge james goudkamp is fellow and tutor at Keble College and Associate Professor, University of Oxford sarah green is fellow and tutor at St Hilda’s College and Associate Professor, University of Oxford nicholas j. mcbride is James Campbell Fellow in Law at Pem- broke College, University of Cambridge and Quondam Fellow, All Souls College, University of Oxford rob merkin is Lloyd’s Professor of Commercial Law at the Univer- sity of Exeter kenneth w. simons is Professor of Law and The Honorable Frank R. Kenison Distinguished Scholar in Law at Boston University School of Law j. r. spencer qc is Bye Fellow of Murray Edwards College, retired fellow of Selwyn College and Emeritus Professor of Law at the University of Cambridge vii © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information viii list of contributors sandy steel is Lecturer in Law at the Dickson Poon School of Law, King’s College London jenny steele is Professor of Law at the University of York robert stevens is Herbert Smith Freehills Professor of English Private Law at the University of Oxford g. r. sullivan is Professor of Criminal Law at the University of Sussex and Emeritus Professor of Law at University College, London graham virgo is fellow of Downing College and Professor of English Private Law at the University of Cambridge © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information FOREWORD By far the most striking feature of the development of the criminal law in recent years has been the obsession of Parliament for the creation of new offences. The courts have an important secondary role in the interpret- ation of the legislation, but it is not for the courts to create new criminal offences or defences. By contrast, over the same period Parliament has shown far less interest in the law of tort and the considerable development of the law in this area has been largely the work of the courts. Moreover, while Parliament has been highly expansionist in its creation of new offences, its approach to tort (insofar as it has given attention to the subject) has tended towards the opposite direction. Professor Spencer gives the example of the amendment of section 47 of the Health and Safety at Work etc. Act 1974 by the Enterprise and Regulatory Reform Act 2013. In its original form the section provided that a breach of health and safety regulations would be actionable in civil law unless the regulation provided otherwise. The amended version provides the opposite: breach of a health and safety regulation shall not be actionable unless the regulation so provides. This is a strange volte- face. Since the purpose of health and safety regulations is the prevention of personal injury, one might expect a person who is injured as a result of a breach to be entitled to appropriate compensation. It is an odd legisla- tive framework that denies compensation to the injured person but makes the lawbreaker liable to a fine payable to the state. It is worth reflecting about this. When some untoward event or series of events hits the headlines, and the government comes under public pressure to do something to prevent a repetition, all too often the standard response is to create a new offence rather than considering whether a civil remedy might be as well or better adjusted to the welfare of the victim and the need for deterrence. One possible reason for this is that there is also a lamentable tendency to legislate in the broadest terms and to rely on prosecutorial discretion not to institute proceedings in ix © in this web service Cambridge University Press www.cambridge.org Cambridge University Press 978-1-107-06611-3 - Unravelling Tort and Crime Edited by Matthew Dyson Frontmatter More information x foreword minor cases, whereas the institution of civil proceedings would be in the hands of the injured party.

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